CL (India) v Secretary of State for the Home Department

Permission to appeal should be granted where the proposed appeal raises an arguable and important question about the treatment of undisturbed factual findings by an appellate tribunal. The proposed appeal raised whether the insurmountable-obstacles test required an objective assessment of whether a sponsor should be able to cope, or whether credible findings that he could not cope were sufficient. The court granted permission only. It did not decide whether the test was objective or subjective, or whether it was satisfied.

CL, an Indian national married to a British citizen, applied for leave to remain on the basis of family life. The First-tier Tribunal allowed her appeal, accepting that the relationship was genuine and that there were insurmountable obstacles to family life continuing in India.

The Secretary of State appealed to the Upper Tribunal. The Upper Tribunal upheld the credibility findings but held that the First-tier Tribunal had dealt inadequately with insurmountable obstacles. It remade the decision and concluded that no such obstacles existed. CL applied to the Court of Appeal for permission to appeal, raising the proper approach to the factual and objective elements of the test.

Permission granted. Lord Justice Hamblen considered an application for permission to appeal from the Upper Tribunal’s decision.

1. The First-tier Tribunal had accepted the evidence of CL’s husband that he would be unable to cope with the heat in India and would not be able to return there with CL. The Upper Tribunal left the relevant factual and credibility findings undisturbed.
2. The Upper Tribunal nevertheless held that an objective assessment was required. It considered that difficulty coping with heat did not, in itself, amount to the serious hardship required by the stringent insurmountable-obstacles test. It therefore found the First-tier Tribunal’s reasoning legally flawed and remade the decision.
3. The proposed appeal disclosed an arguable ground. An important point of principle arose as to whether the Upper Tribunal could reject the First-tier Tribunal’s conclusion by asking whether the husband objectively should have been able to overcome the obstacle, rather than assessing the significance of the accepted finding that he could not do so.
4. The Court of Appeal granted permission so that this issue could be considered on the substantive appeal. It did not determine the correct legal test, the interaction between subjective evidence and objective assessment, or whether the insurmountable-obstacles requirement was ultimately satisfied.

• Court of Appeal (Civil Division): granted CL’s application for permission to appeal on 31 January 2019.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State’s challenge to the credibility findings, but allowed the challenge concerning insurmountable obstacles, remade the decision and concluded that no insurmountable obstacles existed.
• First-tier Tribunal: allowed CL’s appeal, accepting that her relationship was genuine and subsisting and that there were insurmountable obstacles to family life continuing in India.